Confederate President Jefferson Davis returned from an October 1864 tour of the troubled Deep South states and the bloodied Army of Tennessee to compose an address for the opening of the Second Confederate Congress. Davis designed the address to boost the morale of a discouraged country. He admitted to difficult circumstances the nation faced. He discounted the recent loss of Atlanta, and while pointing to minor successes elsewhere, insisted that the Confederacy consisted of ideas much more important than physical localities. A strained reason for hope, indeed, but politically necessary. Davis also admitted to the chief Confederate weakness, the shortage of men eligible to be soldiers in the army, and declared that a tightening of exemption laws would produce enough men to repel the invaders. The number of white men could be boosted, Davis maintained, if the Confederate military had access to large numbers of slaves to serve as wagon drivers, cooks, and laborers, and even as pioneer and engineer troops. He lamented that a February 1864 impressment law designed to raise 20,000 slaves for that purpose had failed to produce the required number. Impressed slaves could only be used in limited capacities owing to the fact that slave owners protective of their investments had constrained how, and how long, the state might use them. Davis cast around for ideas on how to increase the number of slaves fully committed to Confederate service.

The president found a solution not by adjusting numbers (though he did increase the requisition to 40,000 men) or reconsidering the degree of political pressure on individuals and states. Instead, he invited Congress to consider “a radical modification in the theory of the law.” Davis meant for the Confederate government to assume greater power to impress, retain, train, and utilize slave labor in larger capacities in the military effort. He stopped short of advocating the arming of slaves for service in the ranks, but claimed that should the Confederacy desire to do so, the move would be “justifiable, if necessary.” Ten months before, Davis had squelched the discussion of arming slaves when it was raised by General Patrick Cleburne. Now, Davis himself initiated a heated public discussion by suggesting, essentially, the same thing.

Confederate President Jefferson Davis returned from an October 1864 tour of the troubled Deep South states and the bloodied Army of Tennessee to compose an address for the opening of the Second Confederate Congress. Davis designed the address to boost the morale of a discouraged country. He admitted to difficult circumstances the nation faced. He discounted the recent loss of Atlanta, and while pointing to minor successes elsewhere, insisted that the Confederacy consisted of ideas much more important than physical localities. A strained reason for hope, indeed, but politically necessary. Davis also admitted to the chief Confederate weakness, the shortage of men eligible to be soldiers in the army, and declared that a tightening of exemption laws would produce enough men to repel the invaders. The number of white men could be boosted, Davis maintained, if the Confederate military had access to large numbers of slaves to serve as wagon drivers, cooks, and laborers, and even as pioneer and engineer troops. He lamented that a February 1864 impressment law designed to raise 20,000 slaves for that purpose had failed to produce the required number. Impressed slaves could only be used in limited capacities owing to the fact that slave owners protective of their investments had constrained how, and how long, the state might use them. Davis cast around for ideas on how to increase the number of slaves fully committed to Confederate service.

The president found a solution not by adjusting numbers (though he did increase the requisition to 40,000 men) or reconsidering the degree of political pressure on individuals and states. Instead, he invited Congress to consider “a radical modification in the theory of the law.” Davis meant for the Confederate government to assume greater power to impress, retain, train, and utilize slave labor in larger capacities in the military effort. He stopped short of advocating the arming of slaves for service in the ranks, but claimed that should the Confederacy desire to do so, the move would be “justifiable, if necessary.” Ten months before, Davis had squelched the discussion of arming slaves when it was raised by General Patrick Cleburne. Now, Davis himself initiated a heated public discussion by suggesting, essentially, the same thing.

The military situation in the South had changed dramatically since Cleburne’s suppressed memorandum. Atlanta, in the heart of the Confederacy, had fallen to the Union army of William T. Sherman and Ulysses Grant’s Union forces hemmed Robert E. Lee’s Army of Northern Virginia to the outskirts of Richmond and Petersburg. Further, Abraham Lincoln’s reelection to the presidency of the United States dashed Confederate hopes that victory by his Democrat opponent would signal a national desire to make peace with an independent Confederacy. Assistance from abroad, once a key expectation of Confederate leaders, now appeared impossible to attain. Now, at the same time that Davis delivered his address, Sherman set off his Union army on its celebrated “march to the sea.” At home, supplies for the army dwindled while inflation continued to soar.

The desperation of the Confederate situation had caused many Southerners to give up hope for independence. Some acted on this loss of will by joining the now-chronic flow of deserters from the army. Others advocated the return of the Southern states to the Union. A few thinkers inside the government and in the civilian world, so stunned at Confederate reversals, began to formulate innovative ways to salvage hope. The Confederacy’s chief ordnance officer, Josiah Gorgas noted “there is no help except to use negroes, giving them their freedom.” The Governor of Louisiana, Henry W. Allen said much the same, “we have in our negro slaves the means of increasing the number of available fighting men.” The editor of the Charlotte (N.C.) Democrat flatly proclaimed “it will be necessary to take negroes [into the army as soldiers] or abandon the struggle for independence.” Indeed, Davis’ closest advisors urged him to reconsider his stance. Judah P. Benjamin, the Confederate Secretary of State, most forcefully advocated the use of slave soldiers in the president’s cabinet.

Davis, though strongly convinced about the rightness of slavery and the conservative nature of the Confederate experiment, was under a considerable pressure to contemplate the idea. He proved a nimble enough thinker to reexamine his convictions and consider a new relationship between blacks and whites in the South.

Jefferson Davis was born to be a champion of the South’s peculiar institution. A Kentucky-born Mississippi planter, Davis had access to the west’s finest private preparatory schools and then attended the United States Military Academy at West Point. He served at various frontier forts along the Mississippi River for seven years before he resigned his commission, married the daughter of future President Zachary Taylor, and settled in Mississippi to take up the life of a cotton grandee where his new bride promptly died of malaria. Under his brother’s tutelage, Jefferson Davis became a planter and in 1843 entered the world of Democratic politics as a candidate for the state legislature. He lost, but his star rose in Mississippi political circles. Married again, to Varina Howell, Davis continued both his work as a planter and a party operative. The Democrats rewarded him with a nomination to the United States House of Representatives and Davis won the election in 1846. Shortly thereafter, he re-donned the military uniform when he became Colonel of the First Mississippi Volunteers for the war with Mexico. In battle he and his regiment gained national attention for bravery and élan, so much so that when he returned to Mississippi, the governor appointed him to fill a vacant senatorial seat. Senator Davis served in that body until 1860, except for the four years he stood as the Secretary of War in the Franklin Pierce administration.

Jefferson Davis’ farewell address to the United States Senate upon Mississippi’s withdrawal from the Union, offers a revelatory view of his thinking on slavery, secession, and the cause of the fledgling Confederacy. On what he called “the saddest day of my life,” Davis stepped to the Senate floor and explained that since Mississippi had seceded, he must depart. He took pains to delineate between nullification and secession, to defend both John Calhoun and Andrew Jackson, and to wish the remaining Senators good will. But he insisted that Mississippi’s secession followed a legal and legitimate course. Standing on the principle of state sovereignty, Davis insisted that states had the right to remove themselves from the dangerous effects of hostile laws. The hostile laws emanating from increasingly dominant Northern representatives in Congress consisted of the idea that black people should occupy a place of equality with white people. Davis rejected this notion not on social grounds, as so many of his contemporaries would, but on Constitutional precedent. In reviewing the Declaration of Independence and the Constitution Davis noted that blacks “were not put upon the footing of equality with white men.” To insist otherwise, as the emerging Northern majority did, would court the destruction of the great republic. Davis thus cast the sectional disagreement not as particularly about slavery–though even he cited no other reason–but about great constitutional principles. He pledged that by seceding, the Southern states acted upon the “high and solemn motive of defending and protecting the rights we inherited.” Davis’ facility with the constitutional argument presaged his reassertion of it in November 1864, albeit with a slightly altered interpretation.

The section of Davis’ November 7 address under review is entitled “Employment of Slaves.” He begins with a reminder that the Act of the previous February authorized the impressment of up to 20,000 slaves “if it should be found impracticable to obtain them by contract with owners.” Davis noted the problem with implementation of the Act; slave owners still possessed title to the contracted or impressed slaves and insisted on limitations to how the government employed their bondsmen. Owners included in contracts limits on amounts of time a slave could be away, and limits on the duties he might perform, thus constraining the Confederate government from obtaining a maximum amount of work.

Here is where Davis proposed “a radical modification in the theory of the law.” As property, slaves’ employment could be severely constrained by their masters. But, Davis said, “the slave…bears another relation to the state–that of a person.” This stance contradicted the pro-slavery finding by the United States Supreme Court in the Dred Scott decision that black men were of such “an inferior order, and altogether unfit to associate with the white race, either in social or political relations…that they had no rights which the white man was bound to respect.” Davis’s new interpretation allowed the state–the Confederacy–to recognize blacks as persons and therefore demand a greater commitment from them. In fact, he wrote, “in this respect the relation of person predominates so far as to render it doubtful whether the private right of property can consistently and beneficially be continued.” In other words, the Confederacy may interpret the law in such a way as to disregard the rights of the slave owner and elevate the status of the slave to that of a legal person. Once so interpreted, the state could then claim the ability to keep a black man in service longer, train him for skilled work, and assign him to dangerous posts–all previously forbidden by contracting masters. Davis recognized that if the state viewed the impressed slave as a person, it had an obligation to grant that slave certain rights and privileges associated with personhood. After all, would not a slave in service to the military be expected to express loyalty, endure hardship, and strive to accomplish difficult tasks? Southern states had a long tradition of rewarding faithful or valorous slaves with emancipation. The same would be expected of slaves serving the Confederacy. The promise of freedom would be “a double motive for a zealous discharge of duty.” Davis did stop to note that any such emancipation would happen only after the service was rendered, not before (as Cleburne and other advocates had suggested).

Davis demurred, however, from advocating the use of black men as soldiers. “Beyond these limits and these employments,” he wrote, “it does not seem to me desirable, under existing circumstances, to go.” However, Davis insisted that such a use would be legitimate; at least more legitimate than the Union’s use of freed slaves as soldiers , which he considered “insurrection against their masters.” If the Confederacy used slaves as soldiers, the moral world could be satisfied that the slaves did so solely “in defense of their homes.” Principle aside, Davis quickly reminded his hearers that he found the use of slaves as soldiers unnecessary so long as enough white men stood ready to fill the ranks. But should that day come when sufficient white men failed at their duty to enlist, “there seems no reason to doubt what should then be our decision.”

Davis grasped at a rhetorical maneuver Cleburne had made when Davis wrote “If the subject [the war] involved no other consideration than the mere right of property [in slaves], the sacrifices heretofore made by our people have been such as to permit no doubt of their readiness to surrender every possession in order to secure their independence.” Where the Jefferson Davis of 1861 had bound the preservation of slavery and the constitutional claim to independence into one impenetrable cause, the Jefferson Davis of late 1864 proved willing to pry them apart and elevate one over the other.

Davis’ address in regard to the potential of slave labor reads less like a lawyer’s brief and more like a man who was delicately reconsidering a fundamental belief and careful to cover his changes with plenty of caveats and conditions. Davis’ thinking about the core values of the Confederacy, though evolving, remained fundamentally conservative. His address pressed policy makers to reconsider the states’ ability to claim the labor and destiny of slave owners’ property, certainly a significant departure from the original secessionists’ protest that the state could not govern the relationship between master and slave. And though he denied that the Confederacy was so desperate as to actually need slave soldiers, he staked a claim to consider their use in the future. Such an admission stunned the Confederate political class and set off a season of vigorous debate on the topic of black men in arms.

Despite Davis’ complete rejection of Patrick Cleburne’s memorial ten months before, the General’s logic about recasting Confederate rhetoric found the president a ready advocate. Davis, after all, had long cloaked the cause of slavery in the language of constitutional principal. Davis had begun divorcing the two as early as July 1864 when he privately told two unofficial Northern emissaries that slavery “was only a means of bringing other conflicting elements to an earlier culmination. It fired the musket which was already capped and loaded.” All it took for Davis to publically discuss the implications of the rhetorical devaluing of slavery was the desperate straights of the Confederacy in late 1864. The furthest implication–the arming of slaves as soldiers and the potential for widespread emancipation–however, was something Davis had conceded only in principle, not as policy. Davis initiated the discussion with his delicate thinking, but Confederates followed with a robust discussion about the fundamental alteration in the nature of slavery.

Many Confederates disagreed with Davis. Prominent statesmen like Georgia’s Howell Cobb and Virginia’s R.M.T. Hunter had no compunction about claiming slavery as the raison d’etre for the Confederacy and enforcing that conviction by opposing all attempts to place blacks alongside whites in the ranks or reward them with emancipation. David Yulee of Florida directly challenged Davis’ new legal configuration: “whenever the Confederate government treats Slaves in the States otherwise than as property a social revolution is begun in the South, the end of which may not be foreseen.” One congressman elegantly described how the bonds forged between soldiers would become sundered, as “a chain which the electric spark of sympathy and mutual confidence can no longer traverse…the answering smile, the triumphant glance, the understood pledge of mutual devotion, heretofore transmitted from company to company [will be] all interrupted and destroyed.” Just as the nation depended on slavery to govern its race relations, individual white men would not countenance emotional intimacy not based on explicitly understood inequality.

Aside from the horrifying prospect of social equality that black men in the ranks might suggest, opponents of the black soldier idea offered other reasons to be against it. To arm blacks would demonstrate to the world–particularly to England and France–how weak and desperate the Confederacy had become. Thus exposed as helpless, the Confederacy would be easy prey for manipulative and predatory nations. Other opponents spoke for the soldiers in the ranks and claimed that they would not fight alongside blacks. But opposition always came back around to the conviction that the plan was impossible to countenance let alone implement because it would betray the very reason for the Confederacy. One opponent lamented that the likely outcome of even limited emancipation and arming of slaves “would inevitably [ be] the destruction of the institution of slavery, and the consequent ruin and degradation of the South.”

The plan’s proponents denied the charge that the proposal to arm and emancipate black men betrayed Confederate ideals. Nothing that Davis had proposed, they observed, permitted anything but perpetual superiority of whites over blacks. Indeed, the Davis administration’s embrace of a limited plan of service followed by emancipation suggests that advocates were clear-eyed about the tenuous future of slavery as it had existed, and were thinking feverishly about how to maintain white supremacy in a post-war world. Historian Bruce Levine has claimed that the proponents of black soldiers had made a “cold-blooded appraisal of the slaveholder’s desperate situation and dwindling options after about the middle of 1863.” But Davis and the realists had still to convince a fractious and skeptical nation.

• Cooper, William J., Jr.Jefferson Davis, American. New York: Vintage, 2001. Print
• Levine, Bruce.Confederate Emancipation: Southern Plans to Free and Arm Slaves during the Civil War. New York: Oxford UP, 2006. Print.

• Escott, Paul D.After Secession: Jefferson Davis and the Failure of Confederate Nationalism. Baton Rouge: Louisiana State UP, 1992. Print.
• Levine, Bruce.The Fall of the House of Dixie: The Civil War and the Social Revolution that Transformed the South. New York: Random House, 2013. Print.
• Martinez, Jamie Amanda.Confederate Slave Impressment in the Upper South. Chapel Hill: U of North Carolina P, 2013. Print.
• Thomas, Emory M.The Confederate Nation: 1861-1865. New York: Harper, reprint, 2011. Print.